Millions of working women of childbearing age are not included in protections for nursing mothers
The federal Break Time for Nursing Mothers provision of the Fair Labor Standards Act (FLSA) requires employers to provide reasonable unpaid break time, as needed, for an employee to express breast milk for her nursing child for one year after the child’s birth. Further, employers are required to provide a place for the employee to express milk—other than a bathroom—that is shielded from view and free from intrusion from coworkers and the public. These requirements were signed into law in 2010 as part of the Affordable Care Act and were a landmark step toward securing pumping accommodations for countless nursing mothers in the workplace.
These provisions were designed to prevent harmful outcomes that can occur without basic workplace accommodations for expressing breast milk, such as negative health consequences, the inability to breastfeed, and economic harm including job loss (documented in the upcoming report Exposed: Discrimination Against Breastfeeding Workers from the Center for WorkLife Law). However, the law has several significant problems that leave nursing mothers at risk. One key issue is that due to where these provisions are placed in the FLSA—in the section that requires employers to pay overtime compensation if an employee works more than 40 hours in a week—all those workers who are exempt (i.e. excluded) from the overtime protections of the FLSA are also exempt from the break time protections for nursing mothers. These exemptions affect roughly one out of every four working women of childbearing age (between the ages of 16 and 44). There are a total of 37.8 million working women of childbearing age in the United States, and more than 9 million of them are excluded from the Break Time for Nursing Mothers protections. That includes more than 1 million black women, 976,000 Hispanic women, 825,000 Asian women, more than 6 million white women, and 185,000 women of other races. The below table shows further breakdowns by state and industry.
In addition to the more than 9 million working women of childbearing age who are legally exempt (i.e. excluded) from these protections, additional millions are at risk of being misclassified as exempt—particularly the 3.7 million salaried working women of childbearing age who earn above the salary threshold for exemption but whose job duties mean they should be eligible for the protections. Putting these groups together, there are 12.7 million working women of childbearing age who are either legally exempt (i.e. excluded) from the break time for nursing mothers protections of the FLSA, or are vulnerable to being misclassified as exempt. While certain state and local laws provide additional protections, far too many breastfeeding workers don’t have the legal protections they need.
The Supporting Working Moms Act, currently under consideration in both houses of Congress, would bring 7.5 million white collar workers under the law’s protection for the first time. This would go a long way toward closing the coverage gap, providing protections to 83 percent of currently-exempt working women of childbearing age. It would also strengthen protections for 3.7 million workers who are vulnerable to misclassification as exempt. It is an important step in providing millions of working women of childbearing age the legal protections that they need.
The forthcoming study from the Center for WorkLife Law lays out further principles of a model lactation policy. In addition to universal coverage, these principles include strong enforcement mechanisms, reasonable accommodations for diverse needs and circumstances, functional space requirements, and provisions—like compensable lactation breaks—that address the fact that hourly employees, particularly low-wage workers, may be unable to take advantage of pumping breaks when doing so results in wage loss. These are the kind of common-sense provisions that would improve working conditions for breastfeeding parents and help ensure a modern workplace that is compatible with motherhood.
Millions of working women of childbearing age are excluded from key protections for nursing mothers
|Women workers ages 16–44|
|Total||Excluded from the Fair Labor Standards Act’s Break Time for Nursing Mothers Protections|
|District of Columbia||129,000||70,000|
|Agriculture, forestry, fishing, hunting||181,000||25,000|
|Wholesale & retail trade||5,340,000||522,000|
|Transportation and utilities||850,000||142,000|
|Professional and business services||3,758,000||1,172,000|
|Educational and health services||13,425,000||4,610,000|
|Leisure and hospitality||5,145,000||253,000|
Source: EPI analysis of Current Population Survey Outgoing Rotation Group microdata, 2015-2017.